Bending gender

in San Diego-Thirty years ago, Archie and Edith Bunker lamented changing social norms in the theme song to TV's All in the Family: " … And you knew who you were then: Girls were girls and men were men." Last month in California schools, the gender confusion they sang of became the rule of law. Golden State girls aren't necessarily girls anymore, nor men men, since the State Board of Education (SBOE) shoehorned into California's legal code a new definition of gender. According to Title 5 of the state code, "gender" no longer means male or female, but instead "a person's actual sex or perceived sex and includes a person's perceived identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the person's sex at birth." As of June 2000, at least 18 jurisdictions-including Atlanta, Ann Arbor and Ypsilanti, Mich., New Orleans, Seattle, Washington, D.C., and the states of Minnesota and Missouri-had legally enshrined self-determined gender in their nondiscrimination codes using language similar to California's new definition. In all those locales, a person's gender is what he or she says it is, regardless of biology. And employers, including schools, may not take punitive action if, for example, a man wears a dress to work. But California may be the first state to shape-shift its legal code to snare private schools in the net of "sexual correctness." The state's Code of Regulations, revised in April, effectively adds transsexuals and transvestites to the list of protected students and employees in California schools-public, private, and religious. That means that Golden State children now legally must watch someone like David Warfield, a male teacher, transform himself into female teacher Dana Rivers before their very eyes. In 1998, Mr. Warfield, a teacher at Center High School in Antelope, Calif., announced to administrators his intention to become a woman. Center Unified School District officials directed Mr. Warfield to remain quiet about his transsexual intentions, according to attorney Brad Dacus, president of Pacific Justice Institute. Officials told Mr. Warfield he could transfer to another district school at the end of the year. There he would be introduced to his new students as "Ms. Rivers," hopefully lessening the impact of his actions on students who knew him as a man. The plan angered Mr. Warfield, who decided to make his case a cause. "He began to talk to students about how he had a woman inside of him," said Mr. Dacus, who represented the district in a lawsuit against the teacher. "Some teachers were reportedly using classroom time to further advocate his position." Citing unprofessional conduct, Center Unified put Mr. Warfield on administrative leave in the spring of 1999. The teacher filed suit against the district, but eventually settled out of court: Center Unified paid Mr. Warfield a reported $150,000; Mr. Warfield agreed never to teach in the district again. But under California's retooled code, public schools-and private ones within smelling distance of taxpayer money-would be forced to allow Mr. Warfield to morph into Ms. Rivers while students looked on. "The law recognized that private schools contract to provide educational programs and activities with our money," Joanne Lowe, Deputy General Counsel for the state education board, told WORLD. "If they take our money, they have to play by our rules, and our rules are nondiscrimination." The state's hammer falls on private schools through the "Nondiscrimination and Educational Equity" portion of Title 5 of the California Code of Regulations. Previous versions prohibited exclusion from public-school jobs and programs of any person based on race, religion, color, and national origin, but now self-determined gender is part of that list. Even so, state education boards normally cannot dictate employment or student policy at privately funded schools. But the California board has decided that there can be no discrimination on the basis of gender at any "local agency." A local agency is defined as "a school district, governing board, or county office of education or a local public or private agency which receives direct or indirect funding or any other financial assistance from the state or federal government to provide any school programs or activity." "Direct and indirect" taxpayer funding that turns private schools into "local agencies" currently flows into many private religious schools in the state, according to Rohn Ritzema of the Association of Christian Schools International. Such funding includes government library subsidies; tax-funded tutorial or evaluative assistance for private-school special-needs children; Title I funding for economically disadvantaged kids; and Title X supply funding that public-school districts must make available to private institutions. Now, any private school that participates in such programs also opens its doors to the fast-moving flood of "gender rights" activism. How were the floodgates thrown open in California? In 1998, lawmakers here passed AB1999, a Matthew Shepard-inspired school hate-crimes bill that State Senator Sheila James Kuehl (D-Los Angeles), a lesbian, authored. That law introduced into the Golden State penal code a new definition of gender: "'Gender' means the victim's actual sex or the defendant's perception of the victim's sex, and includes the defendant's perception of the victim's identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the victim's sex at birth." The language, Ms. Kuehl told WORLD, was meant to label as a hate crime any assault motivated by "effeminate" qualities of a male victim or "masculine" qualities of a female victim. Then in 1999 the legislature passed AB537, a law that prohibited exclusion from school activities or jobs of any person based on sex, ethnicity, national origin, race, religion, mental, or physical disability-and any basis specified in the penal code, including sexual orientation and the freshly hatched definition of gender. AB537 referred to but did not explicitly state that definition. But after the law took effect in 2000, Sheila Kuehl visited the Board of Education and told them that it should. "In AB1999, I meant to redefine gender," Ms. Kuehl told WORLD. "In AB537, I meant to conform the definition of gender in the education code to that found in the hate-crimes statute." Ms. Kuehl encouraged the school board to spell out California's new gender language in Title 5 of the state Code of Regulations. The school board obliged-and then went one better. Using an "administrative rules change"-a constitutionally authorized procedure that California state agencies may use to "clarify" existing law without further action by the legislature-the board changed state code in at least three critical ways:

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The board "clarified" which schools the law covered, changing the term "public schools" to "local agency," then defining "local agency" to include private schools.

The board re-imagined the penal-code definition of gender, omitting "the defendant's perception of the victim's gender," and substituting verbiage such as "a person's actual sex or perceived sex," and "a person's perceived identity." That language shift made people who determine their own gender, such as cross-dressers and transsexuals, protected classes in Golden State private schools.

Wherever AB537 prohibited exclusion from school programs or jobs by educational institutions receiving state funds, the board inserted the term "federal funds," thus capturing more private schools.

Karen Holgate, director of policy at the conservative Capitol Resource Institute in Sacramento, said the board may have cleverly expanded Title 5's impact on private schools: Since all public schools receive federal funds of some kind, including the word "federal" in the code would not change the number of public schools affected-only private. California pro-family legislators and activists charged that the board had overstepped its bounds, creating new law instead of clarifying existing law. But the Office of Administrative Law, the state agency charged with reviewing the board's rule change, did not agree, and approved the new language in April. Still, religious conservatives have an opening to mount a legal challenge: Title 5's amended wording conflicts with religious-exclusion language in AB537. Under that law, educational institutions controlled by religious groups are exempt from hiring, say, a transvestite or openly homosexual teacher, if school administrators object to doing so on religious grounds. Meanwhile Title 5 may have nullified for California parents any positive outcome of a landmark U.S. Supreme Court ruling last June: That decision upheld a government program that has loaned materials such as computers to religious and other private schools. That was good news then, but now any California private school receiving such a loan would be considered a "local agency" and thus snared in the new gender dragnet-regardless of any moral or religious principles.